Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff sought to amend his damages claim from $1.5 million to $2.1 million based on new expert evidence

• Defendant requested a late neuropsychological assessment in response to updated plaintiff expert reports

• Court analyzed whether the late request for a defence medical examination was justified under procedural rules

• Determination turned on whether the delay would cause non-compensable prejudice or undue trial delay

• Expert opinions and timing of their service were central to both parties' procedural rights

• Leave to file additional reports and amend the claim was granted, emphasizing fairness and trial preparation

Facts and procedural history

The matter arose from a motor vehicle accident that occurred on December 26, 2020. The plaintiff, Tad Stewart, alleged that he sustained serious and permanent injuries, including psychological and cognitive impairments. Initially, he claimed damages in the amount of $1.5 million. However, following the delivery of new expert reports between August and October 2024, the plaintiff sought to increase his claim to $2.1 million, citing additional economic loss, future care, and housekeeping expenses.

On October 29, 2024, the defendant, Brian Clifford Rice, requested that the plaintiff attend a neuropsychological examination to respond to these updated reports. The plaintiff refused to attend, arguing that the deadline for defence expert reports had passed and that the request would delay the trial and cause prejudice. The action was set for trial in March 2026.

The defendant’s motion and the legal test applied

The defendant brought a motion under section 105(2) of the Courts of Justice Act and Rule 53 of the Rules of Civil Procedure to compel the plaintiff to attend a defence medical examination and to obtain an extension of time to serve the resulting expert report. The plaintiff opposed the motion, citing late notice and potential prejudice.

Justice Kalajdzic applied the applicable legal framework, particularly Rule 53.08, which allows leave to serve late expert reports where:

• there is a reasonable explanation for the failure to meet the deadline, and

• no non-compensable prejudice or undue delay will result.

The court noted that while the defendant had not initially sought a neuropsychological assessment following Dr. Fulton’s 2023 report, it was reasonable to do so after receiving additional expert reports in late 2024. Dr. Fulton’s updated commentary, delivered on October 15, 2024, endorsed extensive new care recommendations and marked a material shift in the plaintiff’s case, both in quantum and type of damages.

Assessment of delay and prejudice

The court found that the defendant acted reasonably in not seeking the assessment earlier, as the earlier expert reports did not justify it. The delay in requesting the defence medical examination was not due to inattentiveness but rather strategy, which the court accepted. Importantly, the court found that the plaintiff would not suffer any prejudice that could not be addressed through costs, and there would be no impact on the scheduled trial date.

Amendment of the claim

The plaintiff also sought leave to amend the statement of claim to increase damages. Although the defendant noted that the amendment would push the claim beyond insurance policy limits, he did not oppose the amendment on grounds of prejudice. The court reiterated that potential exposure beyond policy limits is not a valid ground to refuse an amendment. As such, leave to amend was granted without terms.

Outcome

The court granted the defendant’s motion, ordering the plaintiff to attend the neuropsychological assessment with Dr. Duhamel on October 21, 2025, and allowing the defence to serve the resulting expert report by November 30, 2025. The plaintiff was also granted leave to amend the prayer for relief in the statement of claim to increase the damages sought. The court encouraged the parties to resolve costs but set deadlines for submissions in the event they could not.